Lawyers for Lexington Public Schools argue case before SJC

Tuesday

Mar 4, 2014 at 3:00 PMMar 5, 2014 at 2:32 PM

By Marc Filippino and Caitlyn Kelleher / lexington@wickedlocal.com

The seven justices of the Massachusetts Supreme Court heard oral arguments about the role of an arbitrator in a teacher's termination, as a personnel case from the Lexington Public Schools made its way before the state's highest court Tuesday.“I can't imagine something more threatening than being sexually harassed by your teacher, who is supposed to be your role model,” said Geoffrey R. Bok, the lawyer representing the Lexington School Committee and School District.Bok defended Superintendent of School Paul Ash's decision to fire Lexington High School teacher Mark Zagaeski in 2011. A 17-year-old student alleged Zagaeski made her feel uncomfortable after he said he would improve her grade in exchange for sexual favors.In April 2012, an arbitrator ruled that Zagaeski's behavior a year earlier was "unbecoming a teacher" but that the actions did not justify termination and that his previously positive evaluations showed his continued employment was in the best interest of the students.The arbitrator ruled that Zagaeski should have been suspended for two days, and that the district owed him back pay and legal expenses. The school district and the Lexington School Committee appealed the decision to the Middlesex Superior Court who ruled with the arbitrator in May 2013, according to court records.SCJ Chief Justice Roderick L. Ireland asked Bok if the grounds for Zagaeski's firing conflicted with public policy.“What public policy in 2014 would allow an arbitrator to reinstate a teacher found of sexual harassment? That has no place in the Lexington Public Schools,” Bok said.Ireland also asked Bok about the arbitrator's use of the word “minor” in his report when describing Zagaeski's “action unbecoming of a teacher.”“This teacher made repeated comments that were found to be offensive. I don't feel that to be minor,” said Bok.Daniel O'Connor, the lawyer representing Zagaeski, made the point a court should use the same methodology when reviewing the case that the arbitrator did. But Associate Justice Robert J. Cordy disagreed.“So if a district pushes to terminate and an arbitrator says, ‘I don't think so,' the decision can be overturned by the arbitrator? I don't think so. I think the penalty is appropriate,” Cordy said.Ireland again pushed the point of public policy, but this time asking what it would say about a district if it allowed an arbitrator to find a teacher guilty of sexual harassment and still let that person teach.“What is the message to parents?” he asked.O'Connor responded by saying sometimes the lines of comfortableness between students and teachers are blurry and might accidentally be crossed when trying to connect to students.“The message is that a teacher makes time with these kids five days a week, 180 days a year to delve into content and make them feel comfortable. Sometimes they veer close to the line of propriety, get close to it and in this case, crossed over it,” he argued.O'Connor also felt the arbitrator did a thorough job in figuring out whether the incident occurred, whether it was minor and if it was in the best interest of the student if Zagaeski was reinstated. He also said Zagaeski began to realize the weight of his actions and wrote a letter to the districts saying he would be more cognizant of what he said in the future.“[The arbitrator] found it was minor and felt the teacher should have been reinstated after a two-day suspension at most,” O'Connor said.In his final statements, Bok said the fact there was a repeated incident showed there was a lack of recognition by Zagaeski of the impacts his statements made.“A better teacher or person would have recognized the case and not repeated it.”Associate Justice Barbara Lenk reminded Bok the arbitrator found no signs of a pattern in Zagaeski's behavior.Bok closed by saying by overturning the superintendent's decision, it would then give the power to teachers and not the court or arbitrators.The justices will now take the oral arguements and written briefs under consideration. The court generally issues written decisions within 130 days.

Editor's note: This story was edited at 2:30 p.m. March 5 to correct an attribution to Associate Justice Robert J. Cordy.